2010(3) LAW HERALD (P&H) 1922
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C. R. No. 4033 of 2010
Balraj
v.
Nathu Ram & Ors.
{Decided on 01/07/2010}
For the Petitioner: Mr. Avtar Singh Khinda, Advocate.
Constitution of India, 1950, Art.227--Civil Procedure Code, 1908, O. 21--Execution Proceeding--Objections--Possession--Contention that suit property belong to Cantonment Board and therefore, decree-holder cannot seek possession of suit property in execution of decree is misconceived--No such objection can be raised in execution petition--Petitioner is son and grandson of judgment-debtors and claims through them--Petitioner has no independent right to remain in possession of suit property. (Para 4)
Showing posts with label Civil Procedure Code. Show all posts
Showing posts with label Civil Procedure Code. Show all posts
Monday, August 30, 2010
Tuesday, August 17, 2010
Civil Procedure Code, 1908, O.39, R.1 and 2-
2010(3) LAW HERALD (P&H) 2054
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C.R. No. 5857 of 2009
Iqbal Singh & Ors.
v.
Karan Podar & Anr.
{Decided on 25/01/2010}
For the Petitioners: Mr. J. S. Chahal, Advocate.
For the Respondents: Mr. Anil Chawla, Advocate.
Civil Procedure Code, 1908, O.39, R.1 and 2--Specific Relief Act, 1963--Temporary Injunction--Agreement to sell--Purchaser affirmed affidavit regarding his presence before Sub-Registrar on 16.04.2007--But he did not mention in said affidavit that he had brought requisite amount for getting sale deed executed and registered as per agreement--Seller was also present before Sub-Registrar on 16.04.2007and affirmed affidavit regarding his presence and readiness and willingness to execute sale deed as per agreement--Thereafter, Seller moved another application regarding his presence before Sub-Registrar--There is endorsement of Sub-Registrar thereon made at 05:00 P.M.. on 16.04.2007 regarding presence of Seller and his readiness to execute document--It has further been noticed by Sub-Registrar in his endorsement that purchaser has not shown transaction money required--It would prima facie depict that purchaser was not ready with requisite amount to get sale deed executed and registered as per agreement--This explains omission in affidavit affirmed by purchaser regarding amount being with him--In addition seller even served notice dated 23.04.2007 by registered post on purchaser to get sale deed executed and registered as per agreement--Purchaser alleged that they were forcibly dispossessed by seller in November 2007--However, inspite thereof, they did not file suit immediately, but filed after waiting for another five months--Even before November 2007, purchaser did not file suit after seller had allegedly failed to execute sale deed in April--No prima facie case for grant of temporary injunction in favour of purchaser is made out--However, since purchaser have advanced huge amount of Rs.1crore as earnest money directions required to be issued to protect interest of purchaser--Seller directed to inform prospective alienees about pendency of suit so that alieness may not take plea of being bona fide transferees--Application for temporary injunction dismissed.
(Para 11, 12, 15 & 16)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C.R. No. 5857 of 2009
Iqbal Singh & Ors.
v.
Karan Podar & Anr.
{Decided on 25/01/2010}
For the Petitioners: Mr. J. S. Chahal, Advocate.
For the Respondents: Mr. Anil Chawla, Advocate.
Civil Procedure Code, 1908, O.39, R.1 and 2--Specific Relief Act, 1963--Temporary Injunction--Agreement to sell--Purchaser affirmed affidavit regarding his presence before Sub-Registrar on 16.04.2007--But he did not mention in said affidavit that he had brought requisite amount for getting sale deed executed and registered as per agreement--Seller was also present before Sub-Registrar on 16.04.2007and affirmed affidavit regarding his presence and readiness and willingness to execute sale deed as per agreement--Thereafter, Seller moved another application regarding his presence before Sub-Registrar--There is endorsement of Sub-Registrar thereon made at 05:00 P.M.. on 16.04.2007 regarding presence of Seller and his readiness to execute document--It has further been noticed by Sub-Registrar in his endorsement that purchaser has not shown transaction money required--It would prima facie depict that purchaser was not ready with requisite amount to get sale deed executed and registered as per agreement--This explains omission in affidavit affirmed by purchaser regarding amount being with him--In addition seller even served notice dated 23.04.2007 by registered post on purchaser to get sale deed executed and registered as per agreement--Purchaser alleged that they were forcibly dispossessed by seller in November 2007--However, inspite thereof, they did not file suit immediately, but filed after waiting for another five months--Even before November 2007, purchaser did not file suit after seller had allegedly failed to execute sale deed in April--No prima facie case for grant of temporary injunction in favour of purchaser is made out--However, since purchaser have advanced huge amount of Rs.1crore as earnest money directions required to be issued to protect interest of purchaser--Seller directed to inform prospective alienees about pendency of suit so that alieness may not take plea of being bona fide transferees--Application for temporary injunction dismissed.
(Para 11, 12, 15 & 16)
Sunday, August 8, 2010
Punjab State Election Commission Act, 1994, S.76 and 89
2010(3) LAW HERALD (P&H) 2029
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr.Justice Rakesh Kumar Jain
FAO No.492 of 2010 (O&M)
Amrik Singh
v.
Election Tribunal, Gurdaspur & Ors.
{Decided on 05/05/2010}
For the Appellant: Mr. H.S.Sethi, Advocate.
For the Respondent Nos.4 to 6: Mrs. K.K. Kahlon, Advocate.
Punjab State Election Commission Act, 1994, S.76 and 89--Civil Procedure Code, 1908, O.5 R.17--Election of Sarpanch--Notice of meeting--Service of notice--Summons bear the endorsement of serving officer that appellant and respondent Nos. 4 to 6 have refused to take summons which were served upon them for purpose of attending meeting dated 19.7.2008--CPC provides a procedure in case of refusal of service of summons by defendant--In case defendant refused to sign acknowledgment, serving officer shall affix a copy of summon on outer door or some conspicuous place of his house in which defendant ordinarily resides or carries on business or personally works for gain--No such procedure has been adopted by serving officer--Procedure carried out on 19.7.2008 in which members of minority group have elected Sarpanch on basis of report of refusal of summons by appellant and respondent No. 4 to 6 has to be set aside--Deputy Commissioner directed to hold fresh meeting for purpose of election of Sarpanch, after giving due notice to all concerned in accordance with law.
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr.Justice Rakesh Kumar Jain
FAO No.492 of 2010 (O&M)
Amrik Singh
v.
Election Tribunal, Gurdaspur & Ors.
{Decided on 05/05/2010}
For the Appellant: Mr. H.S.Sethi, Advocate.
For the Respondent Nos.4 to 6: Mrs. K.K. Kahlon, Advocate.
Punjab State Election Commission Act, 1994, S.76 and 89--Civil Procedure Code, 1908, O.5 R.17--Election of Sarpanch--Notice of meeting--Service of notice--Summons bear the endorsement of serving officer that appellant and respondent Nos. 4 to 6 have refused to take summons which were served upon them for purpose of attending meeting dated 19.7.2008--CPC provides a procedure in case of refusal of service of summons by defendant--In case defendant refused to sign acknowledgment, serving officer shall affix a copy of summon on outer door or some conspicuous place of his house in which defendant ordinarily resides or carries on business or personally works for gain--No such procedure has been adopted by serving officer--Procedure carried out on 19.7.2008 in which members of minority group have elected Sarpanch on basis of report of refusal of summons by appellant and respondent No. 4 to 6 has to be set aside--Deputy Commissioner directed to hold fresh meeting for purpose of election of Sarpanch, after giving due notice to all concerned in accordance with law.
Tuesday, July 20, 2010
Civil Procedure Code, 1908, O.17, R.1
2010(2) LAW HERALD (P&H) 989
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
Civil Revision No.429 of 2010
Gurpreet Singh
v.
Satpal Nirmal & Ors.
{Decided on 15/03/2010}
For the Petitioner: Mr. B.S. Bhalla, Advocate.
For the Respondent Nos.2, 3 and 4: Mr. Anant Kataria, Advocate.
Civil Procedure Code, 1908, O.17, R.1--Constitution of India, 1950, Art. 21--Administration of justice--Speedy disposal--Civil dispute--Issues were framed on 23.10.2002--Case was not fixed for leading evidence--Trial Court directed to dispose of the suit expeditiously preferably within a period of one year. (Para 2 & 4)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
Civil Revision No.429 of 2010
Gurpreet Singh
v.
Satpal Nirmal & Ors.
{Decided on 15/03/2010}
For the Petitioner: Mr. B.S. Bhalla, Advocate.
For the Respondent Nos.2, 3 and 4: Mr. Anant Kataria, Advocate.
Civil Procedure Code, 1908, O.17, R.1--Constitution of India, 1950, Art. 21--Administration of justice--Speedy disposal--Civil dispute--Issues were framed on 23.10.2002--Case was not fixed for leading evidence--Trial Court directed to dispose of the suit expeditiously preferably within a period of one year. (Para 2 & 4)
Rejection of plaint--Plaint cannot rejected on ground that ad-valorem court fee on market value of suit property was not paid
2010(2) LAW HERALD (P&H) 982
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Civil Revision No. 6115 of 2009
Satpal & Anr.
v.
Radhey Shyam & Ors.
{Decided on 04/03/2010}
For the Petitioner: Mr. GS Punia, Advocate.
For the Respondent nos. 1 and 2: Mr. Vishal Gupta, Advocate,
For he Remaining Respondents: None.
IMPORTANT POINT
Rejection of plaint--Plaint cannot rejected on ground that ad-valorem court fee on market value of suit property was not paid
(A) Civil Procedure Code, 1908, O. 7, R.11--Civil Procedure Code, 1908, O. 6 R.17--Rejection of plaint--Amendment of plaint--Plaintiffs sought relief of joint possession of suit property to extent of half share and sought partition of suit property and permanent injunction--Plaint cannot be rejected because plaintiffs have pleaded that they are owners and in joint possession of property to extent of half share--Moreover, Plaintiffs clarified their position in reply to application as to how they became owners of half share of suit property--Even according to jamabandi plaintiff no. 1 has share in suit property--Plaintiff no. 2 claims to have got share in suit by way of gift and entry to their effect is also made in jamabandi--Consequently plaintiffs have been rightly allowed to amend plaint to this effect--However plaintiffs are subjected to cost RS.2000/- for amendment of plaint. (Para 6)
(B) Civil Procedure Code, 1908, O. 7, R.11--Rejection of plaint--Plaint cannot rejected on ground that ad-valorem court fee on market value of suit property was not paid--Issue of valuation of court fee can be decided only after framing of issue and recording of evidence. (Para 7)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Civil Revision No. 6115 of 2009
Satpal & Anr.
v.
Radhey Shyam & Ors.
{Decided on 04/03/2010}
For the Petitioner: Mr. GS Punia, Advocate.
For the Respondent nos. 1 and 2: Mr. Vishal Gupta, Advocate,
For he Remaining Respondents: None.
IMPORTANT POINT
Rejection of plaint--Plaint cannot rejected on ground that ad-valorem court fee on market value of suit property was not paid
(A) Civil Procedure Code, 1908, O. 7, R.11--Civil Procedure Code, 1908, O. 6 R.17--Rejection of plaint--Amendment of plaint--Plaintiffs sought relief of joint possession of suit property to extent of half share and sought partition of suit property and permanent injunction--Plaint cannot be rejected because plaintiffs have pleaded that they are owners and in joint possession of property to extent of half share--Moreover, Plaintiffs clarified their position in reply to application as to how they became owners of half share of suit property--Even according to jamabandi plaintiff no. 1 has share in suit property--Plaintiff no. 2 claims to have got share in suit by way of gift and entry to their effect is also made in jamabandi--Consequently plaintiffs have been rightly allowed to amend plaint to this effect--However plaintiffs are subjected to cost RS.2000/- for amendment of plaint. (Para 6)
(B) Civil Procedure Code, 1908, O. 7, R.11--Rejection of plaint--Plaint cannot rejected on ground that ad-valorem court fee on market value of suit property was not paid--Issue of valuation of court fee can be decided only after framing of issue and recording of evidence. (Para 7)
Civil Procedure Code, 1908, S.100
2010(2) LAW HERALD (P&H) 981
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
RSA No.2632 of 2009 (O & M)
Mukhtiar Singh
v.
Harbhajan Singh
{Decided on 16/03/2010}
For the Appellant: Mr. Arihant Jain, Advocate.
(A) Civil Procedure Code, 1908, S.100--Money suit--Second appeal--Execution of pronote--Allegations of fraud & misrepresentation--Execution of pronote & receipt duly proved--Mere denial of defendant is not sufficient to rebut the oral as well as documentary evidence. (Para 4)
(B) Civil Procedure Code, 1908, S.34--Money Suit--Interest--Contractual transaction--Defendant agreed to pay interest @ 18% per annum on loan amount--Courts below awarded interest @ 12.5% only--No fault can be found on the question of interest. (Para 5)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
RSA No.2632 of 2009 (O & M)
Mukhtiar Singh
v.
Harbhajan Singh
{Decided on 16/03/2010}
For the Appellant: Mr. Arihant Jain, Advocate.
(A) Civil Procedure Code, 1908, S.100--Money suit--Second appeal--Execution of pronote--Allegations of fraud & misrepresentation--Execution of pronote & receipt duly proved--Mere denial of defendant is not sufficient to rebut the oral as well as documentary evidence. (Para 4)
(B) Civil Procedure Code, 1908, S.34--Money Suit--Interest--Contractual transaction--Defendant agreed to pay interest @ 18% per annum on loan amount--Courts below awarded interest @ 12.5% only--No fault can be found on the question of interest. (Para 5)
Civil Procedure Code, 1908, O.21 R.55
2010(2) LAW HERALD (P&H) 971
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
C.R.No.5806 of2009 (O&M)
State of Punjab & Ors.
v.
Smt. Krishan Kumar & Ors.
{Decided on 18/03/2010}
For the Petitioner: Mr. Rajesh Garg, Addl. Advocate General, Punjab.
For the Respondent: Mr. Himanshu Raj AAG Haryana.
Civil Procedure Code, 1908, O.21 R.55--Execution--Attachment--Claim of pension--Pension payment order issued in the name of DH--In case the payment of decree holder is released the attachment orders passed by trial Court shall be vacated. (Para 2 & 3)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
C.R.No.5806 of2009 (O&M)
State of Punjab & Ors.
v.
Smt. Krishan Kumar & Ors.
{Decided on 18/03/2010}
For the Petitioner: Mr. Rajesh Garg, Addl. Advocate General, Punjab.
For the Respondent: Mr. Himanshu Raj AAG Haryana.
Civil Procedure Code, 1908, O.21 R.55--Execution--Attachment--Claim of pension--Pension payment order issued in the name of DH--In case the payment of decree holder is released the attachment orders passed by trial Court shall be vacated. (Para 2 & 3)
Thursday, June 24, 2010
Civil Procedure Code, 1908
O.17, R.1--Closing evidence by Court order--Proviso of order 17 Rule 1 lays down that not more than three opportunities should be granted to party to lead evidence, yet aforesaid rule of procedure cannot be said inflexible or mandatory--Defendants granted 4 opportunities for their evidence before closing evidence by order of Court--Held; that end of justice would be met if one more opportunity is granted to lead evidence at his own responsibility subject to payment Rs.5000/- as cost because otherwise impugned order would be very harsh on petitioner as it would be a case of no evidence led by defendants.; Puran Chand alias Raju v. Gopal Krishan & Ors., ; 2010(1) Law Herald (P&H) 878
Civil Procedure Code, 1908
O.17, R.1--Closing evidence by Court order--Proviso of order 17 Rule 1 lays down that not more than three opportunities should be granted to party to lead evidence, yet aforesaid rule of procedure cannot be said inflexible or mandatory--Defendants granted 4 opportunities for their evidence before closing evidence by order of Court--Held; that end of justice would be met if one more opportunity is granted to lead evidence at his own responsibility subject to payment Rs.5000/- as cost because otherwise impugned order would be very harsh on petitioner as it would be a case of no evidence led by defendants.; Puran Chand alias Raju v. Gopal Krishan & Ors., ; 2010(1) Law Herald (P&H) 878
Saturday, June 19, 2010
Civil Procedure Code, 1908
O.17, R.1--Closing evidence by Court order--Proviso of order 17 Rule 1 lays down that not more than three opportunities should be granted to party to lead evidence, yet aforesaid rule of procedure cannot be said inflexible or mandatory--Defendants granted 4 opportunities for their evidence before closing evidence by order of Court--Held; that end of justice would be met if one more opportunity is granted to lead evidence at his own responsibility subject to payment Rs.5000/- as cost because otherwise impugned order would be very harsh on petitioner as it would be a case of no evidence led by defendants.; Puran Chand alias Raju v. Gopal Krishan & Ors., ; 2010(1) Law Herald (P&H) 878
Civil Procedure Code, 1908
O.17, R.1--Closing evidence by Court order--Proviso of order 17 Rule 1 lays down that not more than three opportunities should be granted to party to lead evidence, yet aforesaid rule of procedure cannot be said inflexible or mandatory--Defendants granted 4 opportunities for their evidence before closing evidence by order of Court--Held; that end of justice would be met if one more opportunity is granted to lead evidence at his own responsibility subject to payment Rs.5000/- as cost because otherwise impugned order would be very harsh on petitioner as it would be a case of no evidence led by defendants.; Puran Chand alias Raju v. Gopal Krishan & Ors., ; 2010(1) Law Herald (P&H) 878
Friday, June 18, 2010
CIVIL PROCEDURE CODE, 1908
O.5, R.20--Civil Procedure Code, 1908, O.9, R.7--Exparte Proceedings--Setting aside of--Substituted Service--Where the Court resorts to effect service upon defendant by way of publication, it has to specify the newspaper which shall be a daily newspaper circulating in the locality in which the said defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain--Petitioners resides at Amritsar--Publication carried out in newspaper by name ‘Chardi Kalan, Bhiwani’--Newspaper by aforesaid name in all probability a local newspaper would not be having any circulation in area outside District Bhiwani--Exparte proceeding set aside--Petitioners permitted to join proceedings in suit subject to condition that they appear and file written statement on same very day.; M/S S.N.Hotels & Resorts (P) Ltd. & Anr. v. Shri Sanjeev Kumar & Ors., ; 2010(1) Law Herald (P&H) 726
O.7, R.11(C)--Civil Procedure Code, 1908, S.149--Court Fees Act, 1870--Deficit Court Fee--Plaintiff paid deficit court fee within time granted in first instance by Trial Court as required by Order 7, Rule 11(c)--Plaint could not be rejected on ground of deficit Court fee.; Bikkar Singh v. Jeet Singh, ; 2010(1) Law Herald (P&H) 748
O.9, R.7--Civil Procedure Code, 1908, O.5, R.20--Exparte Proceedings--Setting aside of--Substituted Service--Where the Court resorts to effect service upon defendant by way of publication, it has to specify the newspaper which shall be a daily newspaper circulating in the locality in which the said defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain--Petitioners resides at Amritsar--Publication carried out in newspaper by name ‘Chardi Kalan, Bhiwani’--Newspaper by aforesaid name in all probability a local newspaper would not be having any circulation in area outside District Bhiwani--Exparte proceeding set aside--Petitioners permitted to join proceedings in suit subject to condition that they appear and file written statement on same very day.; M/S S.N.Hotels & Resorts (P) Ltd. & Anr. v. Shri Sanjeev Kumar & Ors., ; 2010(1) Law Herald (P&H) 726
O.39, R.1 & 2--Temporary Injunction--Possession--There is sufficient material in form of revenue entries consistently for 20 years before filing of suit depicting possession of plaintiff and performa defendant no.2 over suit land--Mere filing of application for correction of Khasra girdawari would not depict that defendant/petitioner is prima facie in possession of suit land--Moreover, application for correction of khasra girdawari was moved 17 years after entries made in Jamabandi--Application for temporary injunction rightly allowed.; Jag Ram v. Manphool & Anr., ; 2010(1) Law Herald (P&H) 721
O.41, R.27--Motor Vehicles Act, 1988, S.173--Accident--Compensation--Liability of Insurance Company--Additional Evidence--Valid driving licence--Driving Licence allowed to taken on record by way of additional evidence--Insurance Company got licence verified from Licencing Authority--Driver of offending vehicle had valid driving licence at time of accident--Impugned part of award granting recovery rights to insurance company set aside.; Dinesh Kumar & Anr. v. Smt. Roshni Devi & Ors., ; 2010(1) Law Herald (P&H) 750
S.100(3), O.41, Rule 2 & 3--Punjab and Haryana High Court Rules and Order, Volume I, Chapter I, Part B--Memorandum of Appeal--Rejection of--Amendment after admission of appeal--Memo of appeal not containing substantial question of law as required under Section 100(3) of C.P.C.--Rule 10 of Punjab and Haryana High Court Rules and Orders provides that application under Rule 2, Order 41 CPC, ought to have been moved prior to date fixed for hearing appeal--No such application filed under Order 41, Rule 2 despite the fact that appeal is pending since 1982 and Supreme Court judgment in Kulwant Kaur’s case came in 2001--Adjournment of appeal enabling appellant to move amendment application declined--Memo of appeal rejected under Rule 3 Order 41 C.P.C.; Rajinder Singh & Ors. v. State of Punjab & Ors., ; 2010(1) Law Herald (P&H) 722
S.149--Civil Procedure Code, 1908, O.7, R.11(C)--Court Fees Act, 1870--Deficit Court Fee--Plaintiff paid deficit court fee within time granted in first instance by Trial Court as required by Order 7, Rule 11(c)--Plaint could not be rejected on ground of deficit Court fee.; Bikkar Singh v. Jeet Singh, ; 2010(1) Law Herald (P&H) 748
O.7, R.11(C)--Civil Procedure Code, 1908, S.149--Court Fees Act, 1870--Deficit Court Fee--Plaintiff paid deficit court fee within time granted in first instance by Trial Court as required by Order 7, Rule 11(c)--Plaint could not be rejected on ground of deficit Court fee.; Bikkar Singh v. Jeet Singh, ; 2010(1) Law Herald (P&H) 748
O.9, R.7--Civil Procedure Code, 1908, O.5, R.20--Exparte Proceedings--Setting aside of--Substituted Service--Where the Court resorts to effect service upon defendant by way of publication, it has to specify the newspaper which shall be a daily newspaper circulating in the locality in which the said defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain--Petitioners resides at Amritsar--Publication carried out in newspaper by name ‘Chardi Kalan, Bhiwani’--Newspaper by aforesaid name in all probability a local newspaper would not be having any circulation in area outside District Bhiwani--Exparte proceeding set aside--Petitioners permitted to join proceedings in suit subject to condition that they appear and file written statement on same very day.; M/S S.N.Hotels & Resorts (P) Ltd. & Anr. v. Shri Sanjeev Kumar & Ors., ; 2010(1) Law Herald (P&H) 726
O.39, R.1 & 2--Temporary Injunction--Possession--There is sufficient material in form of revenue entries consistently for 20 years before filing of suit depicting possession of plaintiff and performa defendant no.2 over suit land--Mere filing of application for correction of Khasra girdawari would not depict that defendant/petitioner is prima facie in possession of suit land--Moreover, application for correction of khasra girdawari was moved 17 years after entries made in Jamabandi--Application for temporary injunction rightly allowed.; Jag Ram v. Manphool & Anr., ; 2010(1) Law Herald (P&H) 721
O.41, R.27--Motor Vehicles Act, 1988, S.173--Accident--Compensation--Liability of Insurance Company--Additional Evidence--Valid driving licence--Driving Licence allowed to taken on record by way of additional evidence--Insurance Company got licence verified from Licencing Authority--Driver of offending vehicle had valid driving licence at time of accident--Impugned part of award granting recovery rights to insurance company set aside.; Dinesh Kumar & Anr. v. Smt. Roshni Devi & Ors., ; 2010(1) Law Herald (P&H) 750
S.100(3), O.41, Rule 2 & 3--Punjab and Haryana High Court Rules and Order, Volume I, Chapter I, Part B--Memorandum of Appeal--Rejection of--Amendment after admission of appeal--Memo of appeal not containing substantial question of law as required under Section 100(3) of C.P.C.--Rule 10 of Punjab and Haryana High Court Rules and Orders provides that application under Rule 2, Order 41 CPC, ought to have been moved prior to date fixed for hearing appeal--No such application filed under Order 41, Rule 2 despite the fact that appeal is pending since 1982 and Supreme Court judgment in Kulwant Kaur’s case came in 2001--Adjournment of appeal enabling appellant to move amendment application declined--Memo of appeal rejected under Rule 3 Order 41 C.P.C.; Rajinder Singh & Ors. v. State of Punjab & Ors., ; 2010(1) Law Herald (P&H) 722
S.149--Civil Procedure Code, 1908, O.7, R.11(C)--Court Fees Act, 1870--Deficit Court Fee--Plaintiff paid deficit court fee within time granted in first instance by Trial Court as required by Order 7, Rule 11(c)--Plaint could not be rejected on ground of deficit Court fee.; Bikkar Singh v. Jeet Singh, ; 2010(1) Law Herald (P&H) 748
Sunday, April 11, 2010
CIVIL PROCEDURE CODE, 1908
Partition--Decree against dead person--Validity of--Defendant, predecessor-in-interest of appellant expired during pendency of suit--It was duty of legal representatives of deceased to come on record of their own and contest the suit--Counsel of defendant continued to represent-defendant and impugned decree passed in his presence--Moreover no prejudice is shown to have caused to appellant--No illegality in impugned decree.; Angrej Singh & Ors. v. Jhandu alias Jhandi alias Miadi & Ors.; 2010(1) Law Herald (P&H) 646
S.11--Civil Procedure Code, 1908, O.2, R.2--Res-judicata--Second Suit--Previous suit instituted by plaintiff for permanent injunction only and it during pending of said suit or after dismissal thereof defendant has taken possession of suit plot--Instant suit for possession would not be barred by Resjudicata.; Dharambir & Ors. v. Chet Ram ; 2010(1) Law Herald (P&H) 716
S.100--Second Appeal--Substantial question of law--Any substantial question of law based upon argument which was not raised before Courts below cannot be raised in regular second appeal.; Dakshin Haryana Bijli Vitran Nigam Ltd. & Anr. v. Amarjit Singh Chadha ; 2010(1) Law Herald (P&H) 641
S.148--Civil Procedure Code, 1908, O.21, R.34(2)--Specific Relief Act, 1963, S. 28--Extension of time for deposit of balance sale amount--Suit filed by DH was decreed by the trial court on 21.4.1987--DH was required to deposit the balance amount within two months thereof--DH accordingly deposited the same on 18.5.1987--Said amount remained deposited with the executing court for more than a year--Said amount was withdrawn by DH with permission of the court apparently in the year 1989 when execution petition was adjourned sine die in view of interim stay granted by High Court in second appeal--After final decision of the second appeal by High Court vide judgment dated 22.12.1995, both the parties agitated the matter before the Hon’ble Apex Court by filing SLPs--After the SLPs were also dismissed the DH filed application dated 2.4.1997 for revival of the execution petition which had earlier been adjourned sine die--However, DH died on 26.5.1997--His LRs thereafter moved application on 7.8.1997 in the executing court under section 148 CPC for extension of time--Pursuant to order dated 4.9.1997 passed by the executing court, the decree holder deposited the balance amount on 14.10.1997--In this manner the executing court is deemed to have granted extension of time to the decree holder for deposit of the balance sale price--DH made sufficient ground for extension of time.; Rai Singh v. Mohinder Singh LRs.; 2010(1) Law Herald (P&H) 701
O.2, R.2--Civil Procedure Code, 1908, S.11--Second Suit--Res-judicata--Previous suit instituted by plaintiff for permanent injunction only and it during pending of said suit or after dismissal thereof defendant has taken possession of suit plot--Instant suit for possession would not be barred by Resjudicata.; Dharambir & Ors. v. Chet Ram ; 2010(1) Law Herald (P&H) 716
O.21, R.34(2)--Specific Relief Act, 1963, S. 28--Civil Procedure Code, 1908, S.148--Extension of time for deposit of balance sale amount--Suit filed by DH was decreed by the trial court on 21.4.1987--DH was required to deposit the balance amount within two months thereof--DH accordingly deposited the same on 18.5.1987--Said amount remained deposited with the executing court for more than a year--Said amount was withdrawn by DH with permission of the court apparently in the year 1989 when execution petition was adjourned sine die in view of interim stay granted by High Court in second appeal--After final decision of the second appeal by High Court vide judgment dated 22.12.1995, both the parties agitated the matter before the Hon’ble Apex Court by filing SLPs--After the SLPs were also dismissed the DH filed application dated 2.4.1997 for revival of the execution petition which had earlier been adjourned sine die--However, DH died on 26.5.1997--His LRs thereafter moved application on 7.8.1997 in the executing court under section 148 CPC for extension of time--Pursuant to order dated 4.9.1997 passed by the executing court, the decree holder deposited the balance amount on 14.10.1997--In this manner the executing court is deemed to have granted extension of time to the decree holder for deposit of the balance sale price--DH made sufficient ground for extension of time.; Rai Singh v. Mohinder Singh tho. LRs.; 2010(1) Law Herald (P&H) 701
O.41, R.27--Partition--Additional evidence--Writing regarding purchase of 2/5th share of land measuring 11 marlas on 21.11.1968 not relied upon by appellants in their pleadings--Aforesaid writing has no evidentiary value as same being beyond pleadings--Application for leading additional evidence rightly rejected.; Angrej Singh & Ors. v. Jhandu alias Jhandi alias Miadi & Ors.; 2010(1) Law Herald (P&H) 646
S.11--Civil Procedure Code, 1908, O.2, R.2--Res-judicata--Second Suit--Previous suit instituted by plaintiff for permanent injunction only and it during pending of said suit or after dismissal thereof defendant has taken possession of suit plot--Instant suit for possession would not be barred by Resjudicata.; Dharambir & Ors. v. Chet Ram ; 2010(1) Law Herald (P&H) 716
S.100--Second Appeal--Substantial question of law--Any substantial question of law based upon argument which was not raised before Courts below cannot be raised in regular second appeal.; Dakshin Haryana Bijli Vitran Nigam Ltd. & Anr. v. Amarjit Singh Chadha ; 2010(1) Law Herald (P&H) 641
S.148--Civil Procedure Code, 1908, O.21, R.34(2)--Specific Relief Act, 1963, S. 28--Extension of time for deposit of balance sale amount--Suit filed by DH was decreed by the trial court on 21.4.1987--DH was required to deposit the balance amount within two months thereof--DH accordingly deposited the same on 18.5.1987--Said amount remained deposited with the executing court for more than a year--Said amount was withdrawn by DH with permission of the court apparently in the year 1989 when execution petition was adjourned sine die in view of interim stay granted by High Court in second appeal--After final decision of the second appeal by High Court vide judgment dated 22.12.1995, both the parties agitated the matter before the Hon’ble Apex Court by filing SLPs--After the SLPs were also dismissed the DH filed application dated 2.4.1997 for revival of the execution petition which had earlier been adjourned sine die--However, DH died on 26.5.1997--His LRs thereafter moved application on 7.8.1997 in the executing court under section 148 CPC for extension of time--Pursuant to order dated 4.9.1997 passed by the executing court, the decree holder deposited the balance amount on 14.10.1997--In this manner the executing court is deemed to have granted extension of time to the decree holder for deposit of the balance sale price--DH made sufficient ground for extension of time.; Rai Singh v. Mohinder Singh LRs.; 2010(1) Law Herald (P&H) 701
O.2, R.2--Civil Procedure Code, 1908, S.11--Second Suit--Res-judicata--Previous suit instituted by plaintiff for permanent injunction only and it during pending of said suit or after dismissal thereof defendant has taken possession of suit plot--Instant suit for possession would not be barred by Resjudicata.; Dharambir & Ors. v. Chet Ram ; 2010(1) Law Herald (P&H) 716
O.21, R.34(2)--Specific Relief Act, 1963, S. 28--Civil Procedure Code, 1908, S.148--Extension of time for deposit of balance sale amount--Suit filed by DH was decreed by the trial court on 21.4.1987--DH was required to deposit the balance amount within two months thereof--DH accordingly deposited the same on 18.5.1987--Said amount remained deposited with the executing court for more than a year--Said amount was withdrawn by DH with permission of the court apparently in the year 1989 when execution petition was adjourned sine die in view of interim stay granted by High Court in second appeal--After final decision of the second appeal by High Court vide judgment dated 22.12.1995, both the parties agitated the matter before the Hon’ble Apex Court by filing SLPs--After the SLPs were also dismissed the DH filed application dated 2.4.1997 for revival of the execution petition which had earlier been adjourned sine die--However, DH died on 26.5.1997--His LRs thereafter moved application on 7.8.1997 in the executing court under section 148 CPC for extension of time--Pursuant to order dated 4.9.1997 passed by the executing court, the decree holder deposited the balance amount on 14.10.1997--In this manner the executing court is deemed to have granted extension of time to the decree holder for deposit of the balance sale price--DH made sufficient ground for extension of time.; Rai Singh v. Mohinder Singh tho. LRs.; 2010(1) Law Herald (P&H) 701
O.41, R.27--Partition--Additional evidence--Writing regarding purchase of 2/5th share of land measuring 11 marlas on 21.11.1968 not relied upon by appellants in their pleadings--Aforesaid writing has no evidentiary value as same being beyond pleadings--Application for leading additional evidence rightly rejected.; Angrej Singh & Ors. v. Jhandu alias Jhandi alias Miadi & Ors.; 2010(1) Law Herald (P&H) 646
Wednesday, March 31, 2010
CIVIL PROCEDURE CODE, 1908
CIVIL PROCEDURE CODE, 1908 S.100--Second appeal--Finding of facts--Interference--Findings recorded by the learned trial court which have been affirmed by the learned lower appellate court cannot be said to be one which can be said to be perverse or not capable of being arrived at on appreciation of evidence which may call for interference by this court under section 100 of the Code of Civil Procedure.; Chhelu Ram v. Dan Singh,: 2010(1) Law Herald (P&H) 521
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of--Presumption--Termination of tenancy--When letter is received back with report ‘Not Present’, no presumption of service can be drawn unless something more is proved by leading cogent evidence that it was in fact refusal--No such evidence led by plaintiff-appellant--Tenancy was not held to be terminated by valid notice.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of--Presumption--Termination of tenancy--Notice returned with remarks ‘Not Present’--Plaintiff gave a suggestion that it was refused on date of dispatch itself--But no proof of refusal given nor any evidence led to prove this suggestion--Contention that service by certificate of posting could be presumed cannot be sustained when notice issued did not carry any date showing termination of tenancy.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of—Presumption--Termination of tenancy--Presumption of service, of a letter addressed at a correct address can be drawn in case it is not received back served or otherwise--Once a letter sent is received back with the remarks by the Postal Authorities, then it has to be decided on facts of each case whether service can be presumed or not.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of--Presumption--Termination of tenancy--In case it is proved, that there is no role of the addressee in sending back the letter and the letter, is received back by the sender with the remarks ‘Not Present’ no presumption can be drawn of addressee’s service, as ‘the return’ itself shows that letter was actually not served--Learned trial court was not correct in recording that under section 106 of the Transfer of Property Act, the notice is merely to be dispatched.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Mode of Service--Termination of tenancy--Section 106 gives liberty to serve the notice, by post or tender or deliver it to the party or one of his family members or servant at his residence, and in case such tender and delivery is not practicable affix it at the conspicuous place of the property.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.6, R.17--Amendment of Written Statement--Counter claim--Application moved to amend written statement to incorporate relief of counter claim allowed--Amendment cannot be rejected merely on ground that plea raised in counter claim is contradictory to plea raised in written statement.; Raghubir Singh & Ors. v. Tajinder Pal Singh & Ors.,: 2010(1) Law Herald (P&H) 485
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of--Presumption--Termination of tenancy--When letter is received back with report ‘Not Present’, no presumption of service can be drawn unless something more is proved by leading cogent evidence that it was in fact refusal--No such evidence led by plaintiff-appellant--Tenancy was not held to be terminated by valid notice.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of--Presumption--Termination of tenancy--Notice returned with remarks ‘Not Present’--Plaintiff gave a suggestion that it was refused on date of dispatch itself--But no proof of refusal given nor any evidence led to prove this suggestion--Contention that service by certificate of posting could be presumed cannot be sustained when notice issued did not carry any date showing termination of tenancy.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of—Presumption--Termination of tenancy--Presumption of service, of a letter addressed at a correct address can be drawn in case it is not received back served or otherwise--Once a letter sent is received back with the remarks by the Postal Authorities, then it has to be decided on facts of each case whether service can be presumed or not.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Service of--Presumption--Termination of tenancy--In case it is proved, that there is no role of the addressee in sending back the letter and the letter, is received back by the sender with the remarks ‘Not Present’ no presumption can be drawn of addressee’s service, as ‘the return’ itself shows that letter was actually not served--Learned trial court was not correct in recording that under section 106 of the Transfer of Property Act, the notice is merely to be dispatched.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.5 R.20-A--Transfer of Property Act, 1882, S.106--Notice--Mode of Service--Termination of tenancy--Section 106 gives liberty to serve the notice, by post or tender or deliver it to the party or one of his family members or servant at his residence, and in case such tender and delivery is not practicable affix it at the conspicuous place of the property.; Rama Nand v. Mulakh Raj & Anr.,: 2010(1) Law Herald (P&H) 502
O.6, R.17--Amendment of Written Statement--Counter claim--Application moved to amend written statement to incorporate relief of counter claim allowed--Amendment cannot be rejected merely on ground that plea raised in counter claim is contradictory to plea raised in written statement.; Raghubir Singh & Ors. v. Tajinder Pal Singh & Ors.,: 2010(1) Law Herald (P&H) 485
Wednesday, March 17, 2010
Encroachment--Local Commissioner--Local Commissioner made demarcation and found defendants to have encroached upon 6 marlas land of plaintiff
2010(1) LAW HERALD (P&H) 472
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Regular Second Appeal No. 1728 of 2008
Sant Singh & Ors.
v.
Gulab Singh & Ors.
{Decided on 27/01/2010}
For the Appellant: Mr. Arun Jain, Senior Advocate with Mr. Vishal Goyal, Advocate.
Civil Procedure Code, 1908, O.26, R.9--Encroachment--Local Commissioner--Local Commissioner made demarcation and found defendants to have encroached upon 6 marlas land of plaintiff--Local Commissioner examined in evidence--Objections preferred against report of Local Commissioner also dismissed--Concurrent finding of fact by both Courts below regarding encroachment made by defendants on land of plaintiffs for which their suit was decreed--No interference in second appeal warranted. (P.7)
--------------
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Regular Second Appeal No. 1728 of 2008
Sant Singh & Ors.
v.
Gulab Singh & Ors.
{Decided on 27/01/2010}
For the Appellant: Mr. Arun Jain, Senior Advocate with Mr. Vishal Goyal, Advocate.
Civil Procedure Code, 1908, O.26, R.9--Encroachment--Local Commissioner--Local Commissioner made demarcation and found defendants to have encroached upon 6 marlas land of plaintiff--Local Commissioner examined in evidence--Objections preferred against report of Local Commissioner also dismissed--Concurrent finding of fact by both Courts below regarding encroachment made by defendants on land of plaintiffs for which their suit was decreed--No interference in second appeal warranted. (P.7)
--------------
Tuesday, March 16, 2010
Resjudicata--Prayer made in suit for declaration and injunction restraining defendants from interfering in possession--This relief was not available to plaintiffs when earlier suit for pre-emption was filed
2010(1) LAW HERALD (P&H) 468
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
R.S.A. No. 187 of 2010 (O&M)
Daya Nand
v.
Risal Singh & Ors.
{Decided on 22/01/2010}
For the Appellant: Mr. S.S. Godara, Advocate.
IMPORTANT POINT
Bar of suit--Resjudicata--Prayer made in suit for declaration and injunction restraining defendants from interfering in possession--This relief was not available to plaintiffs when earlier suit for pre-emption was filed--Second suit could not said to be barred under Order 2, R.2 CPC and under principle of res judicata.
(A) Specific Relief Act, 1963, S.37--Injunction--Permanent Injunction--Decree of pre-emption was executed and possession given thereof by executing Court to plaintiff which could only be done after pre-emption money was deposited--Specific stand by plaintiff that amount deposited was received by mother of defendant not rebutted--Thus, it cannot be said that pre-emption money was not paid. (P.9)
(B) Limitation Act, 1963, S.6, 7 & 8--Decree against minor--Setting aside of--Limitation--Defendant/appellant had not chosen to challenge decree within three years of attaining majority--Not open to challenge decree passed 20 years back.
(C) Civil Procedure Code, 1908, O.2, R.2--Civil Procedure Code, 1908, S.11--Bar of suit--Resjudicata--Prayer made in suit for declaration and injunction restraining defendants from interfering in possession--This relief was not available to plaintiffs when earlier suit for pre-emption was filed--Second suit could not said to be barred under Order 2, R.2 CPC and under principle of res judicata. (P.14)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
R.S.A. No. 187 of 2010 (O&M)
Daya Nand
v.
Risal Singh & Ors.
{Decided on 22/01/2010}
For the Appellant: Mr. S.S. Godara, Advocate.
IMPORTANT POINT
Bar of suit--Resjudicata--Prayer made in suit for declaration and injunction restraining defendants from interfering in possession--This relief was not available to plaintiffs when earlier suit for pre-emption was filed--Second suit could not said to be barred under Order 2, R.2 CPC and under principle of res judicata.
(A) Specific Relief Act, 1963, S.37--Injunction--Permanent Injunction--Decree of pre-emption was executed and possession given thereof by executing Court to plaintiff which could only be done after pre-emption money was deposited--Specific stand by plaintiff that amount deposited was received by mother of defendant not rebutted--Thus, it cannot be said that pre-emption money was not paid. (P.9)
(B) Limitation Act, 1963, S.6, 7 & 8--Decree against minor--Setting aside of--Limitation--Defendant/appellant had not chosen to challenge decree within three years of attaining majority--Not open to challenge decree passed 20 years back.
(C) Civil Procedure Code, 1908, O.2, R.2--Civil Procedure Code, 1908, S.11--Bar of suit--Resjudicata--Prayer made in suit for declaration and injunction restraining defendants from interfering in possession--This relief was not available to plaintiffs when earlier suit for pre-emption was filed--Second suit could not said to be barred under Order 2, R.2 CPC and under principle of res judicata. (P.14)
Amendment of pleadings--Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents
2010(1) LAW HERALD (P&H) 478
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
Civil Revision No. 2768 of 2006
Lakmi and Ors.
v.
Karam Singh
{Decided on 12/08/2009}
For the Petitioners: Mr. B.R. Vohra, Advocate.
For the Respondent: Mr. Vikram Punia, Advocate.
IMPORTANT POINT
Amendment of pleadings--Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings.
(A) Civil Procedure Code, 1908, O.6, R.17--Amendment of plaint--Plaintiff was well aware of facts which are now sought to be incorporated in plaint--Further amendment completely change nature of suit from mandatory injunction to that of possession in absence of any allegation that it was during pendency of suit that plaintiff/respondent was disposed--Amendment cannot be allowed.
(B) Civil Procedure Code, 1908, O.6, R.17--Amendment in pleading--Few principles established by various judicial decision are:-
i) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should also not be allowed to change the subject-matter or the controversy in the suit;
ii) The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the facts originally admitted though a party may be allowed inconsistent plea on admitted facts by way of amendment;
iii) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs; (P.12)
(C) Civil Procedure Code, 1908, O.6, R.17--Amendment of pleadings--Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings--The principles are fixed but the application of the same varies according to facts of each case. The power is to be exercised by the Courts for the ends of justice and to prevent the abuse of process of the Court. (P.12)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
Civil Revision No. 2768 of 2006
Lakmi and Ors.
v.
Karam Singh
{Decided on 12/08/2009}
For the Petitioners: Mr. B.R. Vohra, Advocate.
For the Respondent: Mr. Vikram Punia, Advocate.
IMPORTANT POINT
Amendment of pleadings--Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings.
(A) Civil Procedure Code, 1908, O.6, R.17--Amendment of plaint--Plaintiff was well aware of facts which are now sought to be incorporated in plaint--Further amendment completely change nature of suit from mandatory injunction to that of possession in absence of any allegation that it was during pendency of suit that plaintiff/respondent was disposed--Amendment cannot be allowed.
(B) Civil Procedure Code, 1908, O.6, R.17--Amendment in pleading--Few principles established by various judicial decision are:-
i) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should also not be allowed to change the subject-matter or the controversy in the suit;
ii) The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the facts originally admitted though a party may be allowed inconsistent plea on admitted facts by way of amendment;
iii) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs; (P.12)
(C) Civil Procedure Code, 1908, O.6, R.17--Amendment of pleadings--Each case relating to the amendment has to be decided on its own facts by applying the judicial precedents which govern amendment of pleadings--The principles are fixed but the application of the same varies according to facts of each case. The power is to be exercised by the Courts for the ends of justice and to prevent the abuse of process of the Court. (P.12)
Additional Evidence--Applicant sought to produce verification report, that driving license held by driver was a fake licence
2010(1) LAW HERALD (P&H) 433
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
FAO No. 1321 of 2009 (O&M)
National Insurance Company Ltd.
v.
Pooja Rani & Ors.
{Decided on 22/01/2010}
For the Appellant: Mr. Vivek Singal, Advocate.
For the Respondent No.1: Mr. Sudhir Aggarwal, Advocate.
(A) Civil Procedure Code, 1908, O.41, R.27--Motor Vehicles Act, 1988--Additional Evidence--Applicant sought to produce verification report, that driving license held by driver was a fake licence--Verification report received when evidence of appellant was already closed and award passed--Additional evidence cannot be allowed, which was within the knowledge of the applicant-appellant, or could easily be found out with due diligence--No ground for leading additional evidence is made out.
(B) Motor Vehicles Act, 1988, S.173--Compensation--Liability of Insurance Company--Plea taken by insurance company that it was not liable to indemnify the owner, as driver did not hold valid driving licence--Insurance Company failed to lead any evidence in support of this issue--No ground of interfence with award. (P. 3, 4 & 5)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
FAO No. 1321 of 2009 (O&M)
National Insurance Company Ltd.
v.
Pooja Rani & Ors.
{Decided on 22/01/2010}
For the Appellant: Mr. Vivek Singal, Advocate.
For the Respondent No.1: Mr. Sudhir Aggarwal, Advocate.
(A) Civil Procedure Code, 1908, O.41, R.27--Motor Vehicles Act, 1988--Additional Evidence--Applicant sought to produce verification report, that driving license held by driver was a fake licence--Verification report received when evidence of appellant was already closed and award passed--Additional evidence cannot be allowed, which was within the knowledge of the applicant-appellant, or could easily be found out with due diligence--No ground for leading additional evidence is made out.
(B) Motor Vehicles Act, 1988, S.173--Compensation--Liability of Insurance Company--Plea taken by insurance company that it was not liable to indemnify the owner, as driver did not hold valid driving licence--Insurance Company failed to lead any evidence in support of this issue--No ground of interfence with award. (P. 3, 4 & 5)
Consent decree--Setting aside of --Fraud
2010(1) LAW HERALD (P&H) 419
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
RSA No.3044 of 2008
Mohinder Kaur & Anr.,
v.
Kanwal Singh & Ors.
{Decided on 14/01/2010}
For the Appellant: Mr. B.S.Bhalla, Advocate.
(A) Civil Procedure Code, 1908, O. 23, R.3--Consent Decree--Setting aside of--Fraud--Plaintiff-appellant herself admitted that power of attorney was executed by her in favour of their brothers--Plaintiffs made statement in Court through their attorneys who were duly identified by lambardar--Moreover, plaintiffs themselves appeared in Court and admitted claim of defendants--Plaintiffs failed to prove that decree was obtained by fraud and misrepresentation--Judgment and decree do not require any interference. (P. 4 & 7)
(B) Civil Procedure Code, 1908, O. 23, R.3--Consent decree--Setting aside of --Fraud--Once plaintiffs executed power of attorney then they are bound by act done by their power of attorney holder in pursuance of same--Power of attorney holder admitting claim of defendants--Decree not liable to be setaside on ground of fraud. (P.7)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
RSA No.3044 of 2008
Mohinder Kaur & Anr.,
v.
Kanwal Singh & Ors.
{Decided on 14/01/2010}
For the Appellant: Mr. B.S.Bhalla, Advocate.
(A) Civil Procedure Code, 1908, O. 23, R.3--Consent Decree--Setting aside of--Fraud--Plaintiff-appellant herself admitted that power of attorney was executed by her in favour of their brothers--Plaintiffs made statement in Court through their attorneys who were duly identified by lambardar--Moreover, plaintiffs themselves appeared in Court and admitted claim of defendants--Plaintiffs failed to prove that decree was obtained by fraud and misrepresentation--Judgment and decree do not require any interference. (P. 4 & 7)
(B) Civil Procedure Code, 1908, O. 23, R.3--Consent decree--Setting aside of --Fraud--Once plaintiffs executed power of attorney then they are bound by act done by their power of attorney holder in pursuance of same--Power of attorney holder admitting claim of defendants--Decree not liable to be setaside on ground of fraud. (P.7)
Thursday, March 11, 2010
Rebuttal Evidence--Suit for possession by way of agreement to sell
2010(1) LAW HERALD (P&H) 263
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Civil Revision No.3696 of 2008
Malkhan Singh & Ors.
v.
Ram Pal
{Decided on 11/01/2010}
For the Petitioner: Mr. B.B.Kaushik, Advocate.
For the Respondent: Mr. Rajinder Goyal, Advocate.
Civil Procedure Code, 1908, O.18, R.3--Specific Relief Act, 1963--Rebuttal Evidence--Suit for possession by way of agreement to sell--Defendants in their evidence got agreement in question and receipt examined through handwriting expert--Plaintiff in rebuttal evidence wanted to examine handwriting expert to depict that signatures of defendant no.1 on agreement in question tallied with his signatures on same receipts produced by defendant no.1 himself who admitted his signatures therein--Receipts in question on which defendant no.1 admits his signatures were neither pleaded in written statement nor produced during evidence of plaintiff--Proposed evidence by plaintiff in rebuttal allowed to be led subject to payment of cost to defendant. (P.7, 10 & 11)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Civil Revision No.3696 of 2008
Malkhan Singh & Ors.
v.
Ram Pal
{Decided on 11/01/2010}
For the Petitioner: Mr. B.B.Kaushik, Advocate.
For the Respondent: Mr. Rajinder Goyal, Advocate.
Civil Procedure Code, 1908, O.18, R.3--Specific Relief Act, 1963--Rebuttal Evidence--Suit for possession by way of agreement to sell--Defendants in their evidence got agreement in question and receipt examined through handwriting expert--Plaintiff in rebuttal evidence wanted to examine handwriting expert to depict that signatures of defendant no.1 on agreement in question tallied with his signatures on same receipts produced by defendant no.1 himself who admitted his signatures therein--Receipts in question on which defendant no.1 admits his signatures were neither pleaded in written statement nor produced during evidence of plaintiff--Proposed evidence by plaintiff in rebuttal allowed to be led subject to payment of cost to defendant. (P.7, 10 & 11)
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